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Family Law Blog

Comment on divorce & family law

How can unmarried couples have greater rights than married ones?

By Kate Butler, on Monday September 19, 2011 at 12:19pm

There has been some debate in the last week about Living Together (Cohabitation) Agreements. Despite the Government stepping back from a plan to introduce similar rights for unmarried couples as those who are married, like claims on property and pensions in the event of a split, the Law Society is suggesting that a properly drawn-up Cohabitation Agreement can actually give the parties more protection if things went sour further down the line.

I would take issue with this somewhat.

The existing law is uncertain and expensive to apply and, because it was not designed for cohabitants, often gives rise to results that are unjust. Added to that is the fact that very few unmarried couples choose to take up Cohabitation Agreements, just as most of those getting married don’t bother with a pre-nuptial agreement. They don’t enter the relationship expecting it to fail and so don’t plan for it.

Currently, we are waiting with somewhat baited breath for the Supreme Court decision in the case of Kernott versus Jones which will be of interest to all co-habiting couples who own property and which might encourage more people to look at drawing up their own agreements. Without going into too much detail, this revolves around a house jointly bought by the couple but for which most of the mortgage payments and outgoings were met by Ms Jones during the eight years they were together, from 1985 to 1993, with Mr Kernott effectively contributing money to Ms Jones and carrying out substantial renovation. After they split, Mrs Jones continued living in the property and met all costs until Mr Kernott issued a notice of severance in 2008. At this time, Ms Jones obtained a declaration that she owned 90% of the property and it is this decision that has been the subject of court proceedings since. If a decision from the Court of Appeal is upheld it will suggest that, if a house is jointly owned 50/50 when purchased, no matter which party has contributed more, the proceeds on any sale will be split equally. If it is overturned, it could give rise to a potential wave of claims from couples looking to forensically analyse their arrangements with ex-partners over jointly-owned property.

Whilst a Living Together (or Cohabitation) Agreement could have helped in this situation the important issue for all couples in this situation is to take proper advice and have the options of how they own the property (and the consequences), before they buy.

Living together agreements are all well and good and I would encourage more people happy to live together but not to marry to look at setting up one of these agreements. However, do I think it offers better rights for the parties involved than they achieve under law if they get married? I don’t think so. No claims can be made for maintenance, lump sum payments, pension sharing and transfer of property orders for example. So if Kernott and Jones had been married, they would not be mired in what I expect is a very expensive court action.